IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4669 OF 2014 BETWEEN:
Sathishkumar K.A.
S/o late A.S.Krishna Setty Age: Major, Hindu R/at No.63/1, Ground Floor Kanakapura Road, Govindappa Road Basavanagudi Bangalore – 560 004.
…Petitioner (By Sri.Vivek Subba Reddy, Senior Counsel) AND:
1. The State of Karnataka by Arasikere Town Police Station Hassan District Rep by State Public Prosecutor High Court Complex Bangalore – 560 001.
2. K.A.Manohara Setty S/o late A.S.Krishna Setty Major in age, Rathna Talkies Cinema Road, Arasikere Arasikere Taluk Hassan District – 573 103.
3. R.Vishwanatha S/o late K.Ramachandra Shetty Major in age, Rathna Talkies Cinema Road Arasikere, Arasikere Taluk Hassan District – 573 103.
4. A.L.Sathyanagendra S/o late K.Ananthashetty Major in age, Rathna Talkies Cinema Road, Arasikere, Arasikere Taluk Hassan District – 573 103.
(By Sri.I.S.Pramod Chandra, SPP-II for R1 ...Respondents Sri.R.B.Deshpande, Advocate for R2 to R4) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the proceedings in C.C.No.48/14 dated 11.2.14 on the file of the Senior Civil Judge and JMFC., Arasikere, Hassan.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R The petitioner had sought to quash the proceedings initiated against him in C.C.No.48/2014 for the offences punishable under Sections 467, 468, 504, 506 of IPC.
2. Heard the learned counsel for petitioner and learned SPP-II for respondent No.1 and learned counsel for respondent Nos.2 and 4.
3. Respondent Nos.2, 3 and 4 presented a private complaint under Section 200 of Cr.P.C. alleging that there was a dispute between the parties with regard to properties as well as the rendition of the account relating to the partnership business run by the respondents and petitioner and that being the case, a legal notice was received by respondent Nos.2 and 3 stating that the petitioner and respondent Nos.2 and 3 and other partners continued the business augmenting the income but no part of the profit was paid to the petitioner and others from the beginning. It was also mentioned therein that the then Managing Partner K.Ananthalakshmana Shetty had executed an on demand hundi for Rs.25 lakhs and promised to release the payments for the year 2011 and 2012.
4. Contending that the hundi put forwarded by the petitioner and aforesaid K.A.Chandrakanth and others was a forged and fabricated document, respondent Nos.2 and 3 sought criminal prosecution of the petitioner and in the complaint, it was specifically alleged that the aforesaid K.Ananthalakshmana Shetty died in the year 2008, whereas, on the aforesaid hundi (instrument), the date was shown as 26.06.2012, which prima facie indicated that the said document was a forged and got up document.
5. Learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. On completion of the investigation, ‘B’ report was submitted by the police. Respondent Nos.2 and 3 submitted their protest petition and let-in their sworn statement. On considering the same, learned Magistrate took cognizance of the offences and issued summons to the petitioner.
6. The learned Senior counsel appearing for the petitioner submits that the dispute between the parties is purely civil in nature. Much prior to the filing of the aforesaid private complaint, the parties were litigating for division of the immovable properties, as well as for rendition of the account of the partnership business carried on by the respondents as well as the petitioner and other members of the family.
7. In respect of the partnership dispute, arbitration proceedings were going on since 1987. Even in the said arbitration proceedings, the petitioner has produced the hundi in question, which shows that the said document was executed by K.Ananthalakshmana Shetty, the then Managing Partner, towards the settlement of the profits. There is nothing suspicious about the document. Even otherwise, genuineness and validity of the document having been seized by the arbitrator, it was not proper for the respondents to invoke the criminal process by making false and baseless allegations against the petitioner. Further, he contends that on the date of the presentation of the complaint, the respondents themselves had filed a suit seeking permanent injunction against the petitioner and others not to enforce the said hundi. In view of this proceeding, the prosecution of the petitioner is unwarranted and is an abuse of process of law and it is liable to be quashed.
8. Learned counsel appearing for respondent Nos.2 to 4, however, would submit that the allegations made in the complaint, prima facie, constitute the ingredients of the offences alleged against the petitioner. Even though the parties were litigating since 1987, the said hundi did not see the light of the day until 2012. On the face of the record, the said hundi is seen to have been fabricated after the death of K.Ananthalakshmana Shetty. The aforesaid K.Ananthalakshmana Shetty died in the year 2008 and even after his death for more than 4 years, this hundi was not put forward by the petitioner making it evident that the said document is created and got up, only to claim profits in respect of the partnership business and hence, he seeks to dismiss the petition.
9. Learned SPP-II submits that the Investigating Agency having submitted ‘B’ report for lack of evidence, appropriate orders be passed in the matter.
10. On considering the rival submissions and going through the records, I find that the allegations made in the complaint, prima facie, attract the ingredients of the offences alleged against the petitioner and others. No doubt, that the parties are litigating on the civil side since 1987 and arbitration proceedings are also initiated, in respect of division of the partnership assets. But it is significant to note that the disputed hundi had not seen the light of the day until the same was disclosed for the first time in the legal notice issued on behalf of K.A.Chandrakanth and others. It is for the first time, in the said legal notice, respondent Nos.2 and 3 notified the existence of the said hundi. On coming to know about the said document, respondent Nos.2 to 4 have questioned the validity and genuineness of the said document by making a complaint under Section 200 of Cr.P.C. The document relied on by the petitioner, on the face of it, indicates that the said document has come into existence subsequent to the death of the drawer of the said hundi. It is not in dispute that K.Ananthalakshmana Shetty died in the year 2008. The hundi in question is dated 26.06.2012. It is stated that the said hundi is executed in settlement of the profit of Rathna Cinema Theatre from 31.03.1980 to 31.03.2005. As already stated above, the arbitration proceedings were pending between the parties for the relevant period. There is nothing on record to show that either K.Ananthalakshmana Shetty had put forward this document before the arbitrator during his lifetime.
11. In the said circumstances, the allegations made in the private complaint require to be investigated. Since these allegations, prima facie, attract the ingredients of the offences alleged in the complaint, this is not a fit case to quash the proceedings. Accordingly, the petition is dismissed.
It is made clear that any observations made in this order shall not be taken into consideration by the Civil Court or by the Arbitrator in deciding the issues pending before them.
Sd/- JUDGE Prs*